Public Statements

Judicial Nominations

Mr. VITTER. Madam President, I, too, rise this morning to speak about an issue of great importance to me as a freshman of this body; more important, to the Senate as an institution; and most important, to America as a Nation: that is, what is clearly our horribly broken and partisan judicial confirmation process.

Two years ago, the Members of the Senate freshman class of the 108th Congress called on all of their Senate colleagues, Democrats and Republicans, to take a careful look at the Senate's process of confirming judicial nominees. They were fresh from the campaign trail in their respective States, fresh from talking to citizens every day in their campaigns. They heard over and over how dissatisfied people were with the partisanship, the bitter partisanship and obstructionism that they found in Washington, particularly in the Senate. They heard over and over that the clearest example of that was the horribly broken, bitterly partisan judicial confirmation process.

Unfortunately, their valiant efforts did not succeed in fundamentally changing and improving the process. Because of that, as I was on the campaign trail to run for the Senate last year, I heard those same themes, those same concerns from voters all across Louisiana. I know my other freshman colleagues heard the same things from voters in their States. They heard over and over how tired and upset people were at the bitter partisanship in Washington, particularly in the Senate; the endless obstructionism, the endless filibusters. Again, the clearest example of that in citizens' minds was the horribly broken, bitterly partisan judicial confirmation process.

I heard over and over in every part of the State, folks from all walks of life, folks from both parties: Do the people's business. Get beyond all of that game playing. Get beyond that bitter partisanship. The obstructionism, the filibusters, that is not doing the people's business.

Yesterday, I joined with many other Members of my freshman class, the current Senate freshman class, in again calling for the Senate leadership to work together to address the judicial crisis--I use that word for good reason--the judicial crisis we are facing.

As we stated in our freshman letter to our colleagues from Tennessee and Nevada, progress often requires us to make difficult but fairminded decisions. The time has come to prepare our damaged, broken judicial confirmation process. We need a genuine commitment to upholding the equitable principles of our judicial system, a sense of respect for our deeply rooted traditions, and the willingness to compromise.

Several judicial vacancies have been lingering not for months but for years, as my colleague from South Dakota has said, causing more than one jurisdiction to formally declare a ``judicial emergency.'' Because of long-term vacancies, it is imperative we, as Senators, respond promptly to these emergencies. It is unacceptable we should have judicial vacancies in our courts for up to 6 or more years in some cases. It is time to put aside the grievances, the obstructionism, the partisanship that has been built up.

A recent case in point is the nomination of Janice Rogers Brown to the U.S. Court of Appeals for the DC Circuit. Judge Brown, whose nomination has been pending since July 2003, as my colleague from South Dakota noted, is a highly qualified judicial candidate, as evidenced by her background and her training. Justice Brown has 8 years of experience on the California appellate bench, and she has dedicated all but 2 years of her 26-year legal career to public service. Right now, she serves as associate judge of the California Supreme Court, a position she has held since May 1997.

Justice Brown is the first African-American to serve on that State's highest court and was retained with 76 percent of the vote in her last election. California is not exactly a rightwing State. In 2002, Justice Brown's colleagues relied on her to write the majority opinion for the California Supreme Court more times than any other justice.

The daughter of sharecroppers, Justice Brown was born in Greenville, AL, in 1949. She came of age in the South, tragically in the midst of Jim Crow policies, having attended segregated schools in her youth. She grew up listening to her grandmother's stories about the NAACP lawyer who defended Martin Luther King, Jr., and Rosa Parks. Her experiences as a child andthose stories from her grandmother moved her to become a lawyer. In her teens, she moved to California with her family. She earned a B.A. in economics from California State in 1974. She earned her law degree from UCLA Law School in 1977.

In 2003, a bipartisan group of 12 of Justice Brown's current and former judicial colleagues wrote then-Judiciary Committee Chairman ORRIN HATCH in support of her nomination--again, a fully bipartisan group. Another fully bipartisan group of 15 California law professors did the same, as did a dean of the appellate bar in California, and the California director of Minorities in Law Enforcement. What those who know her best say is Justice Brown is a superb judge, conscientious, hardworking, intelligent, sensible, openminded.

Yet Justice Brown, like multiple other judicial nominees, has been waiting and waiting and waiting for an up-or-down vote in the Senate. It is unfair to her. More importantly, it is unfair to the citizens of this country.

Some, like the distinguished minority leader, argue that this is some longstanding venerable practice. That is simply not true. A few minutes ago, the minority leader said in the early days of the Republic, filibusters were common. I hope, in the midst of this very important debate, he will read the history carefully because in the early days of the Republic, the Senate rules had no such thing as a filibuster. The Senate rules were pure majority rule because there was a motion that no longer exists to call the question, to end debate by a majority vote. So in the early days of the Republic--and this is crystal clear in history--there was no opportunity for filibuster because the Senate, just like the House, then and now, operated by pure majority vote.

Certainly it is clear this practice of judicial filibusters for appellate court nominees is brand new. It has never, ever happened for a nominee with majority support before the last Congress. They are very clear, very

well-known examples that prove the point. What about Robert Bork and Clarence Thomas--very controversial nominations opposed by many on the Democratic side but neither was filibustered. Both got up-or-down votes in the relatively recent past. One was confirmed. One was not. That is how the process is supposed to work. That is how it did work until the last Congress.

Others say, yes, these floor filibusters are new but nominees have been held up in the committee before. That has been the functional equivalent of these filibusters we now see when the majority party in the past held up certain nominees in committee.

My response is very simple and very direct. We should change the committee rules as part of this process to ensure every appellate court nominee, every Supreme Court nominee gets to the Senate floor for an up-or-down vote within a certain amount of time. That will fully respond to any legitimate concerns in that regard. That will fully respond to any of those grievances from the past. They can come to the Senate, within a certain amount of time, under a mandate which we can put in the committee or the full Senate rules, and the committee can send them to the Senate with a recommendation we confirm that judge, or that confirmation can come to the Senate with a negative report by a majority of the committee.

We face an impasse. We must do whatever is necessary to end it. Inaction is no longer accessible. Now is the time to resolve it.

Like the complicated policy issues we tackle every day, we cannot avoid the judicial crisis and its surrounding confirmation issues without expecting our inaction to have a major impact on our country. The integrity of our entire judicial system is at stake. Indeed, the integrity of the Federal Government and Congress is at stake as citizens again and again say: Put the people's business first. Take up the people's business. Get beyond this horrible partisanship, obstructionism, and these filibusters.

In closing, I encourage all of my colleagues to take a careful look at the Senate confirmation process. I ask we work together to refine our judicial confirmation process and to break down those partisan walls that have stood in the way of advancing judicial nominations.

There is one compelling reason we need to do this. That is doing the people's business. That is serving the people--not partisan political interests--and the people, across the Nation, all of our citizens, are demanding it.